This afternoon, Day 5 of the U.S. Senate election contest between former Sen. Norm Coleman (R) and apparent winner of the '08 election Al Franken (D), Coleman offered another reason, just in case you needed one, to oppose his return to the Senate:

In a press conference outside the courtroom held just a short while ago, Norm Coleman announced that if he gets back into the Senate, he'll work on ways to make it easier for young people to vote online.

While we're in favor of "young people," and as many other legal voters who wish to vote, actually getting to cast their votes and have them accurately counted, if you like our currently unreliable electronic vote counting systems, which employ untested, unsecured, hackable garbage, then you'll love seeing that system opened up to the Internet!

All that said, however, where Coleman's case began on Monday as little more than a comedy of one error after another, as we explained in some detail earlier this week, over Days 4 (yesterday) and 5 (today), his legal team seems to have found a bit of footing, even if they've had to counter most of their own legal arguments that they'd made previously to keep ballots from being counted during the post-election hand-counting of ballots.

At the end of that process, Franken was found, by the state canvassing board, to have defeated Coleman by 225 votes, out of 2.9 million cast, even though Coleman was slightly ahead in the vote count during most of that time, and thus, argued adamantly against including as many previously rejected absentee ballots as he could.

But that was then, when he thought he was winning, and this is now, when he seems to be losing...

The Slow-Motion Comedy Show

Many of these details are distilled from the excellent coverage by TPM's Eric Kleefeld, who has been reporting, since the start of the trial, from the courtroom in MN, where he's been filing a number of small, as-they-occur items. As previously, we'll try to both tie together key points of that reportage, from him and others, as well as contextualize the whole mess a bit for you, from what Kleefeld smartly described yesterday as "The slow-motion comedy show that is the Minnesota Senate trial."

Coleman's new-found support for Internet voting came following the testimony of his witness, Peter DeMuth, a college student who goes to school in Fargo, ND, who "drove several hours to St. Paul" on Thursday "just so that he could get his vote counted," according to Kleefeld's description of the testimony.

But like several of the six witness called by Coleman earlier this week to testify that their absentee ballot shouldn't have been rejected --- one of whom admitted that his girlfriend forged his signature on his absentee ballot application --- DeMuth's ballot was rejected because the signature on it did not match his application.

In DeMuth's case, rather than printing out the absentee ballot application he received online, and simply signing it before mailing it in, he converted the PDF, as available from the state website, into a graphic JPG file, used his mouse to initialize (rather than sign) the application, and then emailed it back and received his absentee ballot by mail in return. The signature on the ballot he sent back in then failed to match the moused initials on the application, and his ballot was rejected, as per state law.

The case was another one where procedural failures resulted in a legitimately cast vote being rejected, and Coleman is now outraged by it, despite the fact that both Coleman and Republicans across the land have long argued for the rejection of such ballots on equally flimsy grounds, often arguing --- loudly in the media and lawfully in courtrooms --- that such ballots amount to "voter fraud."

But, as we said, that was then and this now.

As we pointed out yet again earlier this week, ballots like DeMuth's, and some of the others who took the stand on Coleman's behalf earlier this week, are often too easily rejected by election officials. Though much of that is directly due to arguments from the GOP --- who generally benefit from as few votes as possible being counted --- that such ballots constitute "voter fraud."

The onus in such cases, we've argued, should be on election officials to prove that those ballots are, indeed, fraudulent, rather than relying on judgment calls by election officials that signatures don't match. Voters ought to be notified when that happens, and given the right to prove that their votes were legitimately cast or not. Otherwise, if ballots are rejected on the basis they are fraudulent, then voter fraud charges should be brought where possible.

It's nice --- if amusing, and extraordinarily hypocritical --- that Republicans, at least in this cherry-picked case, suddenly agree with the premise that votes shouldn't be so easily tossed on the basis of such technicalities. Even if they have to counter their own arguments, even during the course of this very election in MN, in order to do it.

Along those same lines yesterday, when Joe Friedberg, an attorney for Coleman, was trying to make the case that their witness --- the one whose girlfriend forged his signature on the absentee application, which then didn't match the real signature on the ballot --- the following extraordinary admission was made during the questioning of MN Deputy SoS Jim Gelbmann:

Friedberg: In point of fact, even though I did something I wasn't supposed to do with the application, my ballot should still count because my signature is genuine.

Deputy Secretary of State Jim Gelbmann: Not according to the procedures we use to determine whether the signature is genuine.

Friedberg: I don't care about your procedures.

(Franken lawyer calls an objection, is sustained.)

Friedberg: Okay, I do care...

Oy.

And Speaking of Cherry Picking

Franken's team has been making the case that Coleman has been individually selecting, for political reasons, many of the witnesses they've been calling to the stand. They've carefully brought only the voters whose ballots were rejected that they wanted to bring in, because those voters happened to support Coleman, while avoiding bringing others whose absentee ballots were rejected by Coleman himself during the hand-count phase, after the MN Supreme Court's controversial decision to allow the campaigns to agree which previously rejected ballots should or shouldn't be counted.

Upon cross-examination by Franken attorney Kevin Hamilton, DeMuth said he was contacted by the Republican Party and told about the problem. "They asked me if I knew my absentee ballot had been rejected. I said no," said DeMuth. "They asked me if I was a supporter of Norm Coleman, and I said yes, and they proceeded to ask me if I would like to go further."

Let's think about this for a moment: Over the last several days, the Coleman camp has said repeatedly that they are not cherry-picking who they're helping out, that they don't know who the people they're advocating for actually supported, and for all they know they're helping out Franken-voters.

So much for that argument.

Flip-Flop, Flip-Flop, Flip-Flop

On Wednesday, we quoted Coleman's attorney, Ben Ginsberg --- he of the successful Bush v. Gore FL 2000 strategy of fighting to not count votes, due to cherry-picked Equal Protection arguments --- as admitting that "both campaigns have taken positions in the past that are not entirely consistent with what they are now."

He claimed, at the time, "that is frankly irrelevant." But Franken's team argued yesterday that it isn't.

His attorneys have been arguing that the Coleman team has been arguing in favor of inclusion of ballots now, during the contest phase, based on reasoning that they are on record as having previously rejected them during the hand-count phase. They can't, Franken's team argued, have it both ways, according to the legal doctrines of estoppel and invited error which, essentially say (we welcome attorneys who wish to explain it better in comments) that if they did not make the argument previously, they can't now do so now that they've discovered such an argument might benefit them.

Franken's team details some of the Coleman team's flip-flops on ballots that they'd previously rejected during the hand-count phase, as summarized by Kleefeld thusly:

• A ballot was rejected [by Coleman, during the hand-count phase] because the witness failed to fill in their address. This past Monday, Coleman attorney Joe Friedberg was arguing that a lighter standard should be used to include ballots such as these.

• A ballot was affirmed by the Coleman camp as being properly rejected because the voter failed to sign their absentee application, but were given the ballot anyway. Yesterday, Friedberg was saying this sort of state negligence wasn't a specific legal reason to throw out a vote.

• The voter included their registration card inside the special secrecy envelope for the ballot, rather than outside that envelope. Friedberg was arguing yesterday that these ballots should be included.

• The signature on the ballot envelope didn't match the one on the application. The Coleman team now believes extra leniency should be applied in matching up signatures --- even going so far as to advocate for a man who admits that someone else forged his signature on the application.

Yesterday, however, Coleman's lawyers seem to have effectively made a similar case against Franken, arguing that his team is now doing the exact same thing, and arguing against the inclusion of certain ballots, rejected due to technical procedural failures by voters, that they had previously argued should not disqualify such ballots from being counted.

Coleman Finally Gains Some Ground

In regards the Equal Protection strategy now being applied by Coleman's camp to argue that more ballots should be counted now (in contradiction to Ginsberg's 2000 argument, which contended that was reasoning for counting none of them), Keefeld notes that today they may finally be making some headway in that regard, as an election official has admitted on the stand that there may be some ballots out there which were rejected in some counties due to a procedural problem, while in other counties, such ballots were eventually accepted and counted.

"After a week of one comedic misstep after another, the Coleman legal team seems to have finally gotten its act together and managed to score some points," he reports. He's referring to the other key element, beyond the rejected ballots, in Coleman's legal case. That is, the claim that several hundred ballots from Election Night were improperly counted twice during the post-election hand-count, "thanks to a duplication process for damaged ballots and a failure to label them properly."

We'll try to offer more details on that issue in the future, though while Coleman may have made some headway in his case on that point, it is, as Kleefeld notes, a potentially risky strategy for him to take, given the number of votes involved, and given that Franken may be able to toss it right back at them.

"Listen," Coleman is quoted as having said at a presser, stating the obvious, "there's a lot of irony in this process."

Calling All Rejected Voters

Finally, for the moment, on the heels of the "cherry-picked voters" allegations from Franken, Coleman has launched a new strategy which may --- as with several of his witnesses earlier this week --- end up backfiring on him, eventually.

That new strategy, however, has also opened up several new cans of worms.

The webpage claims that Coleman is fighting to ensure "that no voter is disenfranchised in the process or has their vote improperly rejected."

It further says, in full, unabashed hypocrisy mode: "Unfortunately, the Franken campaign continues their efforts to block any additional votes from being counted. In fact, the Franken campaign has now filed a legal motion asking that no additional absentee votes be reviewed, opened or counted. This from a campaign that used to make 'count every vote' their mantra–at least until it was no longer politically convenient for them."

But that strategy may backfire, as Kleefeld explains:

By including every last rejected ballot, regardless of backstory or merit, they are including ballots they themselves earlier objected to counting, under the state Supreme Court's controversial decision that gave the candidates a veto power over improperly-rejected absentees --- and they're now saying it's the Franken campaign who is disenfranchising these people.
...
And remember, the Coleman campaign's position until the last few weeks was that none of these ballots should ever be counted

But that's not the only way the strategy may have backfired...

Crashed, Burned and Hacked

A controversy --- several of them actually --- erupted earlier this week, following the publishing of Coleman's new database of rejected voters which he claimed, was "inundated by tens of thousands of hits today – temporarily crashing the website."

But the site didn't crash, according to Aaron Landry at MN Publius. "The stunt is a completely fabricated lie," meant only to raise attention to his list of rejected voters, said Landry, who offered evidence that Coleman's IT specifically set the site in order to make it appear that it had crashed.

Ironically enough --- in consideration of where today's report began, with Coleman's assertion that he was eager to get back to the Senate to "work on ways to make it easier for young people to vote online," the brouhaha over the supposed crash has also revealed how stupid that would likely be.

According to another Minnesota Independent article, investigation into the website crash, has revealed "a database of campaign donors (complete with names, email addresses, phone numbers and donation amounts) in a publicly accessible, unprotected directory."

Moreover, "the database included the usernames of registered site users, along with their unencrypted passwords, a potentially serious security concern for users who, like many of us, have a master password for various online accounts," according to Schmelzer.

Heckuva job, Normie! Let's get those voters casting ballots online as soon as possible! You think this election contest is a mess?! Let's go to the Internet! What could possibly go wrong?!!

What a wonderful chaos tactic, improperly configure your server so the blog is down and yet the server can be hacked then blame it on the democrats (cough muslims.) Oh and expose some private information along the way. rm -rf a few .htaccess Get a thread going and fill it with trolls.

Seriously, this is the kind of shit that makes me never want to visit a .gov website ever again. Who knows when they are going to make you a target for a cover-up? (yes I am aware this was a .com not .gov, but consider the SOURCE and public and government reaction to attackers on candidates)

Brad: A brief explanation of "invited error." Consider a civil case where the plaintiff asks a judge to give a specific jury instruction, the judge obliges, and the jury, based on the instruction, finds for the defendant. Afterwords the attorney for the plaintiff conducts legal research and discovers that the jury instruction was wrong. The plaintiff appeals, but the appellate court rejects the appeal under the doctrine of "invited error" since the mistake was caused by the plaintiff's legal counsel. The plaintiff in that case would be "estopped" to argue error.

If the doctrine of invited error is applied in this case, it should bar Coleman's effort to assert error with respect to the ballots rejected by reason of the very arguments Coleman's attorney's now want to reverse. Indeed, barring some peculiarity in MN's election law, this would appear to be a classic case for an estoppel.

This whole kerfuffle and the subsequent expense could have been avoided if you had preferential voting in the U.S..

Wrong. And this drives me nuts. If I hear it from one more person hoping to use this case as a reason to push for "preferential voting" (for those not up on this, the argument is that if voters had been able to make a 2nd or 3rd choice on the ballot, those choices could have been used to come up with a clearer verdict in the case, after the votes for the 3rd place Libertarian candidate had been removed from the equation).

a) You think the math, and fights over it in this election were a mess? Try adding a second round where you included 2nd choices.

b) Nothing keeps even an IRV election from being equally as close. We can have similarly close elections occur even after we've factored in the 2nd choices from the candidates who didn't come in either 1st or 2nd in the original count.

I don't know Minnesota election law, but in Ohio if you are challenged about your voting status (such as when signatures don't match) you can always vote a provisional ballot. Another thing that helps is that I work in the same precinct I live in; therefore, I personally know many of the voters by face as well as name, so a fraudulent voter would actually stick out.

If one did not have long lines in their precincts...it has certainly been all over the news the past 8 years. Election fraud has grown exponentially under bush. So absentee ballots have been a way to try and have your vote count. Fair and equal elections would solve a lot of the problems with absentee ballots. Wouldn't be a need for them.

I think it is the Republican strategy to make Franken miss the first 100 days of Obama. Since Obama is overturning so much of the Bush Administration's policies - as well as setting the country on a new economic course that will last for years - the first 100 days are critical to setting the path. After that, it'll be consolidation and adjustments.
BTW, whatever happened to the FBI investigation of Coleman? Shouldn't that make this a moot point if he gets tossed for impropriety? At least, we would have the option of having Franken serve barring a new election.

I didn't like Franken when he was on "Air America". Too conservative for me. And I didn't like his "boys only" jokes, like potty stuff. I think he's clueless about disability rights issues, based on things I heard him say on his former "Air America" radio show...before I stopped listening.

Here's something to add to the "kerfluffle" (I liked that,even if I can't spell it): There is in one city in my state, a permanent list of absentee voters, called Absentee Ballots for Homebound Disabled. Some people using them may need help in signing the envelope.

The issue concerns mismatched signatures on absentee ballots, not at the polling place. So those absentee voters are never given the opportunity to prove they are who they say they are, before their ballots are tossed out and they are disenfranchised.

In regard provisional ballots at the polling place, just so you know, a huge majority of those --- many of them cast by perfectly legal voters --- are also thrown out, without any notice given to the voters. But that's a different matter than the one currently being litigated in MN.

Is Coleman stalling on behalf of his party so as to deny the Senate Democrats a filibuster-proof majority well into Obama's crucial initial 100 days? Judge(s), please take note! You are undoubtedly wary in this case, knowing that party politics is not the purpose of his right to challenge election results. Are your findings complete enough yet to avoid the necessity of Franking having to counter-challenge, leaving our nation in a nonsense mud-puddle of further disservice and loss of life? It is time to ZOOM counter-legislation through to reverse the loss of Democracy!
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To elaborate: I certainly agree --- & more --- with "COMMENT #11 [Permalink]... Scott Baker said on 1/31/2009 @ 8:03 am PT... "

"I think it is the Republican strategy to make Franken miss the first 100 days of Obama. Since Obama is overturning so much of the Bush Administration's policies - as well as setting the country on a new economic course that will last for years - the first 100 days are critical to setting the path."

I agree that this COULD be the Coleman motivation in what I see as MASSIVE stalling, to the detriment of our nation. Yes, I watched the entire Canvassing Board procedire on the 'net, and I HEARD the SOS (was it he?) say that the one who is found to be behind HAS THE LEGAL RIGHT to a court challenge. So I believe in that right. And the loser has to pay both his own legal costs and any costs incurred by his opponent? So what is this about the state paying it? Didn't someone say that? SINCE COLEMAN'S PARTY STANDS TO GAIN SO MUCH FROM THIS LONG DELAY (IT'S ALREADY 1/4 OF A YEAR SINCE THE ELECTION), WHICH FOR NOW PREVENTS A FILIBUSTER-PROOF MAJORITY IN THE SENATE AND THE ISSUE OF FILIBUSTER IS NOW UP IN THESE COUPLE OF DAYS RE OBAMA'S ECONOMIC RECOVERY BILL, I SAY, WOULDN'T A PARTY SO EASY WITH MONEY MAKE $ COST A NON-ISSUE FOR COLEMAN SO HE WILL STALL FOR AS LONG AS HE CAN, AS LONG AS HE CAN WRING OUT OF THE JUDGE(S)?
I hope the judge(s) will consider that this could be a sham trial intended to further undo democracy. Yes, Democracy demands Coleman's right to litigate, but if he gets all ballots counted now, I suspect the "all" will still favor Franken, who would have to pursue that in court with more delays. YES, WE WANT IT TO BE FAIR, LEGAL, AND ACCEPTABLE TO THE VOTERS. I AM NOW STARTING TO FEEL THAT THINGS HAVE GONE PAST THAT POINT --- BRINGING IN AS A WITNESS A MAN WHO SAYS HIS REGISTRATION SIGNATURE WAS DONE BY HIS GIRLFRIEND? REALLY! SUCH ABSURDITY TO CLAIM THAT IN HIS SUPPORT! ANTONE KNOWS THAT ONE'S SIGNATURE HAS TO BE ONE'S OWN! THE MAN HAS NO RIGHT TO VOTE.

SO NOW I APPEAL TO THE JUDGE(S) TO PLEASE CONSIDER WHETHER POLITICS --- & NOT VOTER RIGHTS --- IS THE ISSUE COLEMAN IS AT (AND MAYBE HE IS EVEN BEING PRESSURED OR MORE) TO STALL, STALL, STALL THE RESCUE OF OUR DEMOCRACY AND ITS PEOPLE AFTER COLEMAN'S PARTY HAS FOR ALL THESE YEARS BEEN SO FREE WITH ILLEGALITY AND ABUSE OF HUMAN RIGHTS IN ADDITION TO VOTER RIGHTS. YES, DURING PERHAPS THE MOST CRUCIAL TIME IN OUR NATION'S HISTORY. I AM NOT A MINNESOTAN. I APPEAL TO THE JUDGE(S)AS AN CITIZEN.
HOW MUCH LONGER WILL YOU ALLOW?? ONLY TUESDAY, I HOPE.

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